Jet Advisors Blog

When the fractional ownership of aircraft concept was introduced over 30 years ago no one knew what it was or how it worked. I think the hardest concept of fractional aircraft ownership to grasp was the outright ownership or leasehold of a portion of a very expensive piece of equipment (whole values range from $5 Million for a used small cabin aircraft to $60 Million plus for a large cabin new aircraft). I know when I was new in the fractional aircraft business coming from an original equipment manufacturer it was a concept that took me awhile to master and then explain to prospects. Some describe fractional aircraft ownership as be similar to vacation timeshares and while there are similarities the two concepts/businesses are worlds apart.

Vacation timeshares do provide you with ownership of a tangible asset and most give you title to a specific unit that is recorded in a local government office (such as the County Recorder or Assessor) along with an agreement to share the cost of maintenance and upkeep of the property. The asset is divided normally by a unit of time such as a week so you have rights to the (your) property once a year for that specific week. Also your period of ownership of the property is determined by you and you can dispose of it to anyone you desire and some timeshare operators/managers provide the option to sell your property back to them.

However, with fractional aircraft ownership or leasehold you acquire an undivided percentage interest in a specific aircraft (not a wing or an engine) and the size of the interest determines how much use of the aircraft (flight hours) you have during a 12 month period. If you purchase an interest this is documented by a Federal Aviation Administration (FAA) bill of sale and a FAA application for registration, both of which are filed with the FAA in Oklahoma City and specify that you own an undivided interest in a specific whole aircraft. If you have a leasehold interest in an aircraft, this is evidenced by the filing of the lease with the local FAA Flight Standards District Office (FSDO) and is supposed to be carried on the aircraft that it is associated with during all flights. Unlike vacation timeshares, your term of ownership of the interest in the aircraft or your leasehold of an aircraft is for a preset period of time, normally five (5) years, and you are limited to who you can sell your aircraft share to and limited to who you can assign your leasehold to by the fractional aircraft program providers terms and conditions. Even though you own your undivided interest in the aircraft, if you sell it to a third party or sell it back to the fractional aircraft program manager there are fees and potential penalties.

So, yes you do own a piece of an aircraft (not just a wing or an engine) but you are limited to what you can do with your share when it comes time to dispose of it.

Laser pointers have been commercially available since the 1980s and are seen everywhere from boardrooms, classrooms, in tools, cat and dog toys and even in gas stations as novelties. So why would the FBI offer a $10,000 reward to anyone that helps them to apprehend and convict someone pointing one of these seemingly harmless devices at an aircraft?

Most laser pointers available to the public are pretty harmless if used as they are intended to be and care is made not to shine them in someone’s eyes from close up. However, the danger to aircraft operations comes from the strong concentrated light they emit, the spread of this light at distances and the potential to distract, startle, cause flash blindness and the concern of injury (but at distances the risk of injury is low, at least from the laser beam). Currently there are no commercially available lasers that can physically damage an aircraft and it is unknown and doubtful that there are military lasers that could.

When using a laser outside at night it appears the beam ends at a relatively short distance from the user but that is incorrect and the beam spreads at longer distance like an ordinary flash light. At one half of a mile the beam from a handheld laser spreads to approximately the size of a doorway. When the beam spreads it has the potential to reflect from aircraft windscreens similar to when you are driving at night and an oncoming car does not dim their lights. Aircraft cockpits are kept in low light and the brightness of a laser beam can temporarily blind the crew, not a good thing when flying straight and level but extremely dangerous during the takeoff or landing phase of flight.

Lasers used in laser shows are 6 watts and green in color (green is the preferred color since that color can be seen more easily by the human eye than other colors and are less expensive to manufacture). Even though the light spreads at distances a laser show style laser can reach over 368,000 feet (70 miles) and at that distance the main danger is distraction. At lesser distances the dangers increase, eye hazard at 1,700 feet, flash blindness at 8,700 feet (1.5 miles) and glare at 36,800 feet (7 miles).

Commercial hand held lasers are usually about 5 mW and green in color but even at this lower wattage eye hazard could occur at 52 feet, flash blindness up to 262 feet, glare up to 1,171 feet and distraction up to 11,712 feet.

As mentioned above, this issue is being taken seriously as incidents continue to increase. In 2013 there were 3,960 (average 11 per day) reported instances in the US (up from 1,416 in 2009) and over 4,266 (average 12 per day) in Europe. If you are caught and convicted you could face fines and possibly jail time. A man in California was sentenced to 30 months in jail for pointing a laser at an aircraft and just last week another California man was sentenced to 14 years in prison for pointing a laser at a police helicopter. The second man’s girlfriend was also involved in the incident and is facing a $250,000 fine and 5 years in prision.

You own a fractional share in a specific aircraft through one of the several fractional aircraft programs, and you want (or need) to know who the other owners are. What can you do? Some programs have an ownership agreement that is supposed to be signed by all of the owners of a specific aircraft; if that is the case with your program, you could ask the program provider for a copy of the agreement signed by all owners. Even if your program provider does not require a separate agreement amongst the owners of a specific aircraft, you could request that information from them anyway.

If the program provider will not or cannot supply you with a list of the other owners, what are other options to obtain this information? If your fractional program is based in the United States, then your aircraft is required to be registered with the Federal Aviation Administration (FAA). Most of the information filed with the FAA pertaining to aircraft ownership and registration is public information and easily accessed, if you know where to look. To gain co-ownership information, you will need to know your aircraft’s FAA registration number (also referred to as the tail number or N-Number - this information should be stated in your program provider agreements). Then you can simply go to the FAA web site (www.faa.gov) and then to the N-Number Inquiry page. Type in your registration number and you will get a list of the other co-owners.

The problem with getting a list of the other co-owners from the fractional provider, or from the FAA website, is the lack of contact information. It is doubtful the fractional provider would give you anything but the name the share is owned under, and that is all the FAA provides via their website. To add to this lack of information, most fractional providers use their address, not the co-owner's address, on the registration document and bill of sale to provide an additional level of anonymity for the aircraft co-owners.

You do have other options, such as the subscription service JETNET Online (www.jetnet.com). With access to JetNet, you can search for the other co-owners and drill down for contact information such as an address, a phone number, or an email address. All you need to know to conduct the search is the name of another co-owner (if you happen to already know of one), the FAA registration number, or your specific aircraft manufacturer’s serial number. (Like the registration number, the serial number should also be stated in the program provider agreements.)

Even with the ability to search FAA records and the availability of online services to mine additional information, you can still run into problems determining the real end owner. If the ownership is held in the name of a trust (and many are) or the aircraft share was financed by a financial institution and leased back to the owner, then the true owner or responsible party is masked.

You reviewed the various fractional programs and selected the one that was the best for your travel needs. For years you enjoyed the flight services provided and everything was working as advertised and as you expected – then the service became erratic and a little later nonexistent. What do you do? More importantly, what can you do?

If you leased the fractional aircraft share and have consistently flown your allotted hours, you may be in good shape. If your lease was direct with the provider and not with a third party financial institution, your biggest problem might be simply finding another provider for your air transportation needs. However, if you purchased the fractional share, you’re in a completely different position. Not only will you need to find alternative travel arrangements, but what do you do about your owned interest in the aircraft, your asset?

Most (but not all) fractional programs have a guaranteed buy-back provision in the event of default by the provider. Even if your fractional program agreements have the guaranteed buy-back provision and the service is discontinued, the cause is mostly likely due to the financial condition of the provider.

If your fractionally owned aircraft is fully sold into the fractional share program (i.e. wholly owned by you and other participants in the program and no fractional share is held by the provider), you can try to contact the other owners of the aircraft (FAA records are public information) and reach an agreement amongst yourselves on what to do with the aircraft. Options may include finding a third party manager for the aircraft with the owners sharing the costs of operation and use of the aircraft based on how much they own – I do not think this is feasible unless the aircraft is the rare fractional program aircraft with just a few owners – or selling it on the open market. However, any of the options may be difficult to pursue due to the structure of the program agreement you signed and the legal requirements if the provider has declared bankruptcy.

Selling the aircraft on the open market is probably the best option, but it will have its own set of issues to overcome. Is the aircraft airworthy? The fractional provider is required to keep the aircraft airworthy, but if the provider is in a financial bind, has airworthiness actually been maintained? What about the engines that go with your specific aircraft? Some providers state in the program agreements that the aircraft will have a specific type of engine installed while others specify the exact serial number of the engines. If serial numbers are specified, where are the engines and how do you get them reinstalled on your aircraft? Is your aircraft lien free? And - probably the most important item - where are the aircraft log books and are they complete and up-to-date?

Even if your aircraft is airworthy, the appropriate engines are installed, there are no liens, and the log books are complete, what about its fair market value? Even a small fractional provider going under can have a huge impact on aircraft values when that provider’s fleet is placed on the market. For instance, if 25 used aircraft of a specific type are currently for sale, with only 3 sales in the last 6 months, an insolvent provider with a fleet of 50 aircraft of that type would flood the market. The addition of 50 extra aircraft on the used market would add approximately 8 years of available used inventory, swiftly crushing that aircraft type’s market value.

If you find yourself in a situation where your fractional provider fails to deliver the service you signed on for and want help with the fallout, please feel free to call us at 617.600.6868 and we'll help you navigate your options and find a solution to your private jet needs.

In previous blogs, I discussed getting into and out of fractional ownership programs and how those programs work. This is the final installment in the fractional program blog series, and now I’ll cover the ancillary agreements that make up most fractional programs’ document package.

The main agreements are the fractional aircraft purchase agreement (or lease, if you choose that option) and the fractional aircraft management services agreement – these two agreements form the core of the document package. Not all fractional providers have the same agreement structure but have combined the necessary terms and conditions into other agreements to make the program work. Other agreements include:

Different subsidiaries of the fractional provider parent are the fractional provider party to the diverse agreements to separate their respective duties and obligations.

The fractional aircraft owner’s agreement is the only document that does not include a fractional provider entity. This agreement is solely between the owners of a specific aircraft and sets forth their obligations to each other.

The fractional aircraft dry-lease and exchange agreement is the agreement that makes fractional ownership work. It is essentially a dry lease (meaning no services related to ownership or operation of the aircraft are included) of the program aircraft amongst the various owners. The services needed are provided by the fractional program manager and arranged by the administrator of the dry lease agreement.

The aircraft acceptance form evidences when and where the aircraft share was delivered to the program participant. Normally the date of this document is the date that all of the agreements become effective.

The limited power of attorney grants the program provider the authority to act on the program participant’s behalf with regard to filing requirements with the Federal Aviation Administration (FAA). Some fractional providers even draft it in such a way that they have the ability to transfer the aircraft share back to them or to a third party. You need to check with the provider since some offer other options in lieu of the limited power of attorney.

The corporate resolution goes hand in hand with the limited power of attorney, giving the program participant the authority to provide the program provider the limited power of attorney. As its name states, this is only required when the program participant is a corporate entity.

The warranty bill of sale and assignment is in addition to the FAA bill of sale that is filed with the FAA and passes title and registers same with the FAA. The warranty bill of sale goes further in that it not only confirms the program participant’s ownership of the share but indemnifies the participant in the event title issues arise.

Finally there is the acknowledgement of fractional owner’s operational control responsibilities. This document is required if the program participant elects to have its flights conducted in accordance with Federal Aviation Regulation Part 91 subpart k. Some fractional programs only operate under Part 135, and in that case this document is not required.

You probably have had enough about fractional programs’ aircraft management services agreements, but there are a few more aspects to explore and review. Some are minor, some non-negotiable, but all could cause you to experience unexpected costs.

If needs change relating to your ownership structure, does the agreement provide for assignability to related and unrelated parties? If it does, is it provided as part of the service or are there related fees for the assignment? If you assign your share and have excess hours, do they go with the share or are they forfeit?

What insurance limits are provided and are they high enough to cover potential exposure? Can you buy “add-on” liability coverage? If the provider’s policy premiums increase over the term of your ownership, can they pass that increase on to you, and if the provider or the insurer makes changes to your coverage, are you notified prior to the change?

Catering can be very expensive; is catering included under services provided? What type of catering - is it preset or can you order whatever is available based on your departure point? Are aircraft stocked with snacks and beverages, and is the selection and variety appropriate for the aircraft type you own? Keep in mind that due to aircraft size and galley configuration, catering can be limited to space/storage available. It is no fun to fly with a tray or bag of food in your lap.

Most fractional providers have some form of interchange within the fleet provided there is more than one type of aircraft in the fleet. Some providers allow interchanging to smaller aircraft anytime but interchanging to larger aircraft on an as-available basis. Some allow you to interchange up or down freely (provided aircraft type requested is available). When you interchange in a fractional program, the hours you fly on the larger or smaller aircraft are multiplied by a preset interchange percentage. Is this percentage equitable or almost punitive?

Due to Federal Aviation Administration regulations that apply to fractional jet programs, you may have the option to have your flights flown either in accordance with FAR Part 91 or Part 135. Operationally, you will see little impact on electing to fly under either regulation. Some feel that opting for your flights to be flown in accordance with Part 135 provides more protection from potential liability in the event of an accident.

Each fractional program sets forth the rates they charge either on a monthly or hourly basis; some even have a fee charged on an annual basis. Be familiar with how they escalate, normally on an annual basis on January 1, but sometimes they have an increase built in to take effect at a certain point in an aircraft’s lifecycle.

The last item I want to touch on is aircraft availability. Does your program guarantee you an aircraft even if they have to charter one from a third party provider? If the provider does not guarantee an aircraft, what is your recourse? If they do guarantee an aircraft for all of your trips, what do they consider a “comparable” or better aircraft to the one you own?

OK, you’ve had a lifestyle change and no longer need your private jet, or you need fewer hours than you did when you purchased the fractional share. What do you do? More importantly, what can you do (i.e. what are your options)?

Hopefully you are in a program with well-defined procedures for an easy and somewhat painless exit. The first step is sending written notice to your fractional provider. This step is critical since it starts the “clock” for timing your exit. Normally the full term of your commitment is five (5) years, but with an out after a minimum term is reached. These minimum terms range from 24 to 36 months. You do not have to wait until the minimum term expires and can give your written notice prior to expiration (usually 90 days prior).

Not only does the written termination notice start the clock, but it gives your fractional provider the ability to provide you with the agreements necessary to exit and their view of the market value for your fractional asset. Now what? Review the agreements to make sure they match the terms in the document package signed when you entered the program. Then look at the market value offered compared to what your fractional provider is reselling like shares for. How close are these values? You have to expect some variation but not huge differences. If in doubt, there are resources to call upon, such as ASA certified appraisers who are very knowledgeable in the aviation marketplace. For a relatively small fee, they could save you large amounts of money or at least give you peace of mind that the deal you are offered is fair and equitable.

In addition, having the share appraised helps in your discussion with the fractional provider but may lead to the provider hiring an appraiser and further still to an appraiser arbitration process. Keep in mind – aircraft values are very sensitive to the economy, probably more so than any other asset you possess. We saw a Hawker 400 depreciate 87% in less than 10 years for one of our clients. Almost all programs have some form of brokerage fee deduction on repurchase; some vary by aircraft type and some vary by the length of your ownership. If you have exceeded the hours allotted for the period you owned your share, the fractional provider will reconcile your account and bill additional charges for any excess hours. Unfortunately, if you have under flown the contract, the majority of providers do not issue you a credit or payment for those unused hours.

Once the market value of your fractional share is agreed upon and the termination agreements have been executed, it is time to close the exit. Make sure the location for the transaction (the sale back of your share to the provider) is in a tax-free jurisdiction or your fractional provider issues you a tax exempt form since the provider is purchasing your share for resale.

This is the third in a series of blog posts by David Beach, former Senior VP of Contracts at NetJets, on what questions you need to have answered before signing a management services agreement on a private jet.

Fractional Programs, Know the Terms & Conditions, Part 3

As stated in my last blog, a common facet to all fractional programs is the aircraft management services agreement. As this is, in my opinion, the most important of the numerous agreements that make up the contract package for program providers, it should be reviewed carefully and the terms and conditions clearly understood.

Maintenance

Who performs the maintenance and to what standards? Is the cost of maintenance covered by your monthly or hourly fees? Do you have exposure for modifications, refurbishment and/or Federal Aviation Administration (FAA) directives and/or manufacturers’ service bulletins and alerts? Do you have access to the maintenance records for your aircraft?

Flight Time Costs

Are flight time charges billed at actual flight time or estimated? Is there a per-flight or per-day minimum? How is taxi time accounted for and billed? What happens if your trip is interrupted by mechanical problems or regulatory requirements such as customs stops? Does the provider bill you for the additional landing and take-off, and does the per-flight minimum apply? How is the fuel consumed for your flights billed? Is it rolled into the hourly rate, and how is the cost of fuel calculated (providers’ actual or published average fuel rates)? How does the hourly fee escalate over the term of the agreement, and are there increases along the way as the aircraft ages and as the cost to maintain it increases? In addition to how your flight time is billed, you should know how your allotted hours (annual hours and contract term hours) are calculated and what the impact of under- or over-flying is and what happens if you trade to a smaller or larger aircraft. If you fly outside of the provider’s service area, is there a ferry fee, and does that impact your allotted flight hours?

Notice

In all programs there are notice periods for flight reservations. Does it vary by aircraft type, share size, area of travel and day of travel (peak or busy day versus non-busy day)? If you provide the required notice, does the provider guarantee to cover your flight? Does the provider have the ability to accelerate or delay your requested departure time depending on when notice is given or the level of demand for the departure day?

Customer Service

Most providers have a fairly large staff of customer service representatives. Do they assign an individual or team to your account or do you just get whoever picks up the phone? Will the provider’s customer service staff assist with flight-related services such as car rental, hotel reservations or shipping of excess baggage – and is there a charge for these extra services?

These are a few more of the areas you need to know about but there are more to come.

This is the second in a series of blog posts by David Beach on what questions to ask (and find the answers to) before signing a lease or fractional share/fractional ownership contract on any airplane. Read our first installment of this series here: What to Know About Buying a Challenger 604 Share.

David Beach is the former Senior Vice President of Contracts at NetJets and the current VP of Administration at Jet Advisors.

Fractional Programs, Know the Terms & Conditions (Part 2)

Another common facet to all fractional programs is the aircraft management services agreement. Regardless if the aircraft is a light jet like the Hawker 400XP or a large cabin like the Challenger 604, this is the most important of the numerous agreements that make up the contract package for program providers.

This agreement sets forth the ins & outs of the owner’s or lessee’s duties & payments and the services rendered by the providers along with their duties & responsibilities. Things to pay attention to and understand involve areas of operation, legal requirements (Federal Aviation Administration (FAA) and IRS), term, defaults, additional fees, and use restrictions to name just a few. There are more clauses to be aware of and those will be covered in subsequent blogs.

Operation

Is the provider you are considering worldwide, North American, or regional? If not worldwide, does the provider’s primary service area cover your needs? What are the requirements or limitations if you need to travel outside of the primary service area (additional charges, ferry fees, increased hourly charges and/or increased notice periods)?

Does the provider cover your flight with one of its aircraft, or are you subcontracted to an unrelated third party (and are you advised of this upfront)?

Legal Requirements

Legal requirements can be confusing, especially in the aviation field. Who is considered to be the operator of the aircraft? Does that extend to making sure the maintenance is in accordance with FAA requirements? Who communicates with the FAA if there are issues? Are pilots properly trained and licensed? Who acquires insurance coverage and determines the limits of that coverage? Are there fees to pay to fly the aircraft, then to land the aircraft, and taxes on the fuel you use, or on other fees associated with the management of the aircraft?

Term

The term of the agreement can have a big impact on future aircraft value if you purchase the share. A too-short term can restrict your options without the ability to extend it or renew it. Does the term automatically renew/extend, and for what period? Do you have the option to terminate instead of extending?

Defaults

What actions can you take or not take to be declared in default? What actions or inactions put the provider in default? If a default occurs, are there cures, and how long do you have to cure? What are your rights if the provider defaults?

Additional Fees

If the provider has to modify the aircraft to comply with regulations or upgrades, or refurbishes the aircraft, who pays for it? If the provider increases crew salaries, is that cost passed on to you? Domestic or international landing fees, segment fees, airspace fees, communication fees, and concierge fees - are they bundled into the hourly flight charge and/or the monthly management fee, or passed on to you as incurred? If they are passed on as incurred, are they passed through at cost or with an administrative fee tacked on?

Use Restrictions

Use restrictions are not limited to the provider’s primary service area; most providers have certain limitations on high-demand days, which are usually called peak period days. On peak period days, your cost per hour may increase, you will have a longer notice period, and the likelihood of a delay or acceleration to your requested departure time increases. Some programs, depending on your contract, may further restrict your use on these peak period days.

These are a few of the areas you need to know about, but there are more to come…

David Beach, former Senior Vice President of Contracts at NetJets and current VP of Administration at Jet Advisors, is beginning a series of blog posts on what you need to know before you agree to a fractional share or lease on any airplane.

Fractional Programs: Know the Terms & Conditions (Part 1)

While at first glance, they appear to be very similar in structure and offerings, not all fractional programs are the same - and I am not referring to just aircraft types offered. The terms and conditions governing the programs vary for each provider as well as the agreements used. Consequently, the terms and conditions as well as the documents should be reviewed and understood before you sign on the dotted line.

The document that accomplishes this is either a fractional interest purchase agreement or lease agreement. In either of these agreements, there are things to be aware of, and in some cases, they can be negotiated away or made more favorable to you.One thing, though, is common to all programs. To become a member or owner (as the fractional programs refer to customers), you must acquire ownership of an interest (also referred to as a share) in an aircraft. This is accomplished in one of two ways: either an outright purchase (yes, you buy a “piece” of the aircraft) or through a lease. In the purchase scenario, you receive a bill of sale for the share and are registered as a partial owner of the aircraft with the Federal Aviation Administration (FAA).

Does the provider make reasonable efforts to position the aircraft in a "tax-friendly” location at time of delivery?

What is the guaranteed term of ownership or leasehold? Most programs have a 5-year initial term (60 months), and some give you the option to terminate early after a preset minimum term of ownership or leasehold. If you terminate early, are there penalties or fees? Most ownership structures have a brokerage fee due at termination based on your share’s fair market value at the time of termination regardless of whether you go full term or terminate early.

Since the brokerage fee is based on your share’s fair market value, how is that value determined? Do you have the option to dispute it, or is it take-it-or-leave-it? Is the repurchase at termination guaranteed in a certain time frame, or does provider have to find a new buyer before they buy back the share?

What are your rights if the provider defaults or ceases to do business? For the large providers this is unlikely, but if it did happen, the market would be flooded with aircraft, values would plummet, and you would be holding the bag along with the other owners with shares on the same aircraft.

Another provision to be aware of is assignability. Can you freely assign to an affiliate or to a third party that is unrelated to you or your company? If the share can be assigned, are there fees required for documentation, filings, movement of the aircraft, etc.?

What are your obligations for registering the share with the Cape Town Convention on International Interests in Mobile Equipment (International Registry) when you purchase it and when you sell it back? While not a major expense, signing up to the International Registry and filing or consenting to the purchase and sale back will cost at least $1,000.